KAYSER-ROTH CORPORATION, PETITIONER V. UNITED STATES OF AMERICA
No. 90-815
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The First Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-8a) is reported
at 910 F.2d 24. The opinion of the district court (Pet. App. 9a-27a)
is reported at 724 F. Supp. 15.
JURISDICTION
The judgment of the court of appeals was entered on August 2, 1990,
and a petition for rehearing was denied on August 24, 1990 (Pet. App.
30a-31a). The petition for a writ of certiorari was filed on November
23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether a parent corporation is liable under the Comprehensive
Environmental Response, Compensation, and Liability Act for response
costs resulting from the release of hazardous substances at a
subsidiary corporation's facility where the parent participated in the
operation of the facility.
STATEMENT
Petitioner Kayser-Roth, Inc. was the corporate parent of a wholly
owned textile subsidiary, Stamina Mills, Inc., from 1966 until the
subsidiary's dissolution in 1977. The United States brought this
action against Kayser-Roth, under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et
seq., to recover the government's expeditures in cleaning up
contamination from releases of a hazardous substance,
trichloroethylene (TCE), at the Stamina Mills site. The United States
District Court for the District of Rhode Island entered a declaratory
judgment holding Kayser-Roth liable for the government's past and
future response costs at the site. Pet. App. 9a-29a. The court of
appeals affirmed. Id. at 1a-8a.
1. CERCLA enhances the Environmental Protection Agency's (EPA's)
authority to deal effectively with the release of hazardous substances
into the enviroment. See generally Pennsylvania v. Union Gas Co., 491
U.S. 1 (1989). Under Section 104(a)(1) of CERCLA, 42 U.S.C.
9604(a)(1), EPA may take direct "response" actions to abate any actual
or threatened release of any hazardous substance. 42 U.S.C.
9604(a)(1). Congress has established the Hazardous Substance
Superfund to pay for federal response actions. See 26 U.S.C. 9507.
CERCLA provides that the federal government may bring cost recovery
actions pursuant to Section 107(a)(4)(A), 42 U.S.C. 9607(a)(4)(A), to
replenish the fund when EPA has expended money in performing response
actions. Sections 107(a)(4)(B) and 113(f) of CERCLA also permit
non-governmental parties to recover their necessary costs of response
in certain circumstances. See 42 U.S.C. 9707(a)(4)(B); 42 U.S.C.
9613(f).
A party seeking recovery of response costs under CERCLA must
establish four elements: (1) the defendant falls within one or more
of the classes of liable persons described in Section 107(a); (2) the
site is a "facility" as defined in Section 101(9); (3) a "release" or
"threatened release" of a "hazardous substance" has occurred or is
occurring; and (4) the release or threatened release has caused the
party to incur "response costs." 42 U.S.C. 9607(a). See, e.g., United
States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984,
991-992 (D.S.C. 1984), aff'd sub nom. United States v. Monsanto Co.,
858 F.2d 160 (4th Cir. 1988), cert. denied, 491 U.S. 600 (1989). /1/
As to the first of these four elements, CERCLA establishes four
broad classes of liable persons: (1) the owners and operators of
hazardous substance facilities and sites; (2) persons who owned or
operated a facility at the time hazardous substances were disposed of
at that facility; (3) persons who arranged for disposal or treatment
of the hazardous substances; and (4) persons who transported the
hazardous substances and selected the disposal facility. Section
107(a)(1)-(4), 42 U.S.C. 9607(a)(1)-(4). CERCLA defines the term
"owner or operator" to include "any person owning or operating such
facility," Section 101(20)(A), 42 U.S.C. 9601(20)(A), and it defines
the term "person" to include "an individual, firm, corporation,
association, partnership, consortium, (or) joint venture," Section
101(21), 42 U.S.C. 9601(21).
2. Kayser-Roth manufactures and markets textiles and
other products. In 1966, Kayser-Roth acquired all of the capital
stock of Stamina Mills, a textile manufacturer located on the Branch
River in North Smithfield, Rhode Island. Kayser-Roth placed Stamina
Mills within its Crown Division, a unit of Kayser-Roth's internal
corporate organization, and retained Stamina Mills as a wholly owned
subsidiary until Stamina Mill's dissolution on December 31, 1977.
Upon dissolution, Kayser-Roth received Stamina Mills' assets and
assumed "all liabilities and obligations" of the subsidiary. Pet.
App. 10a-12a.
At the time Kayser-Roth acquired Stamina Mills, the company was
using a soap-scouring system to launder newly woven fabrics. In 1969,
at Kayser-Roth's direction, Stamina Mills abandoned that system and
installed a dry-cleaning system that used the solvent TCE in place of
soap. In November of that year, there was a substantial release of
TCE during a tank truck delivery to the site. In addition, Stamina
Mills evidently discarded used TCE in a landfill at the site. Pet.
App. 10a.
In 1979, the Rhode Island Department of Health discovered that TCE
had contaminated residential drinking water wells in the area
surrounding the Stamina Mills facility. EPA later conducted
hydrogeologic studies and concluded that Stamina Mills was the source
of the contamination. The extent and toxicity of the contamination
qualified the site for the National Priority List, an inventory of
sites posing the most pressing need for governmental cleanup. See 42
U.S.C. 9605(8)(A); 40 C.F.R. 300.66(c) (1989). EPA began clean-up
and the government incurred $846,492.33 in initial removal costs.
Pet. App. 11a.
3. The United States brought a CERCLA cost recovery action against
Kayser-Roth and two other defendants. The government asserted that
Kayser-Roth was potentially liable based, among other matters, on its
role as an operator of the Stamina Mills facility at the time that
hazardous substances were disposed of at that site. Section
107(a)(2), 42 U.S.C. 9607(a)(2). The district court held a five-day
bench trial in July 1989 and determined based on extensive testimony
and other evidence, that Kayser-Roth was liable under CERCLA as an
operator of the Stamina Mills facility. Pet. App. 1a-27a. /2/
The district court stated that "(o)rdinarily, a parent corporation
cannot be deemed an operator based solely upon its status as a
shareholder." Pet. App. 20a. /3/ Rather, the question was "whether
Kayser-Roth exercised control over Stamina Mills management and
operations sufficient to find that Kayser-Roth was a de facto
operator." Id. at 21a. The district court stated:
The evidence establishes that Kayser-Roth was indeed an operator
for purposes of CERCLA. Kayser-Roth exercised pervasive control
over Stamina Mills through, among other things: 1) its total
monetary control including collection of accounts payable; 2)
its restrictions on Stamina Mills' financial budget; 3) its
directive that subsidiary-governmental contact, including
environmental matters, be funneled directly through Kayser-Roth;
4) its requirement that Stamina Mills' leasing, buying or
selling of real estate first be approved by Kayser-Roth; 5) its
policy that Kayser-Roth approve any capital transfer or
expenditures greater than $5,000; and finally, 6) its placement
of Kayser-Roth personnel in almost all Stamina Mills' director
and officer positions, as a means of totally ensuring that
Kayser-Roth corporate policy was exactly implemented and
precisely carried out. These are only examples of Kayser-Roth's
practical total control over Stamina Mills' operations.
Id. at App. 21a-22a. See also id. at 12a-14a. The district court
credited the testimony of three former Stamina Mills presidents "that
they played little or no role in major decisions affecting Stamina
Mills, except with respect to the local details of operating the
factory." Id. at 13a. Instead, "Kayser-Roth essentially was in charge
in practically all of Stamina's operational decisions, including those
involving environmental concerns." Ibid. Thus, it was Kayser-Roth,
rather than Stamina Mills, that selected the TCE cleaning system that
led to the release and consequent response costs. Id. at 22a. The
court also cited "other examples of Kayser-Roth's participation in
Stamina Mills' enviromental decision-making." Ibid.
The court concluded that while "not singularly determinative on the
issue of operator liability, these factors along with Kayser-Roth's
other acts of pervasive control over Stamina Mills, warrant a finding
that Kayser-Roth was an 'operator' for CERCLA purposes within the
provisions of 42 U.S.C. Section 9607(a)." Pet. App. 22a-23a.
4. The court of appeals affirmed the district court's judgment,
rejecting Kayser-Roth's argument that a parent corporation "cannot, as
a matter of law, be held liable" (Pet. App. 2a) for environmental
hazards at a dissolved subsidiary. The court first observed that
CERCLA imposes liability on any "person" who "owned" or "operated" a
facility at the time that hazardous substances were disposed of at the
facility. Id. at 3a. Thus, the court reasoned, under CERCLA "the
legal structure of ownership" does not insulate from liability a
"person" who operates the facility. Id. at 3a-4a. Furthermore,
because CERCLA defines a "person" to include a corporation, Section
101(21), 42 U.S.C. 9601(21)), a corporation that operates a facility
can be liable even if it does not own that facility. Pet. App. 4a.
The court concluded that its "analysis of the statute and its
legislative purpose and history reveals no reason why a parent
corporation cannot be held liable as an operator under CERCLA." Ibid.
The court of appeals additionally observed that other courts had
consistently construed the term "operator" to include corporate
officers and shareholders who participate in the operation of a
facility. Pet. App. 4a. See United States v. Northeastern
Pharmaceutical & Chem. Co., 810 F.2d 726, 743-744 (8th Cir. 1986),
cert. denied, 484 U.S. 848 (1987); New York v. Shore Realty Corp.,
759 F.2d 1032, 1045 (2d Cir. 1985). It concluded that a parent
corporation that participates in the operation of a subsidiary's
facility is similarly liable. Pet. App. 4a. The court noted that
Kayser-Roth relied heavily on the Fifth Circuit's decision in Joslyn
Mfg. Co. v. T.L. James & Co., 893 F.2d 80 (1990), petitions for cert.
pending, Nos. 89-1973 (filed June 18, 1990) & 90-69 (filed June 25,
1990). The court explained that the Fifth Circuit's decision was not
apposite:
The Joslyn court framed its issue as whether to "impose direct
liability on parent corporations for the violations of their
wholly owned subsidiaries." Joslyn, 893 F.2d at 81. On the
theory of the case presently under consideration, Kayser is
being held liable for its activities as an operator, not the
activities of a subsidiary.
Pet. App. 5a.
The court of appeals next examined "whether the district court
correctly held that Kayser was an operator." Pet. App. 5a. The court
first observed:
Without deciding the exact standard necessary for a parent to be
an operator, we note that it is obviously not the usual case
that the parent of a wholly owned subsidiary is an operator of
the subsidiary. To be an operator requires more than merely
complete ownership and the concomitant general authority or
ability to control that comes with ownership. At a minimum, it
requires active involvement in the activities of the subsidiary.
Ibid. The court reviewed the district court's findings that
Kayser-Roth "exerted practical total influence and control over
Stamina Mills' operations" (id. at 5a-6a) and concluded that "(s)uch
control is more than sufficient to be liable as an operator under
CERCLA" (id. at 7a).
ARGUMENT
Kayser-Roth contends that a parent corporation cannot be held
liable under CERCLA for participating in the operation of a
subsidiary's facility without first "piercing the corporate veil."
Pet. 7, 8, 13, 15. The court of appeals correctly rejected that
contention. The court of appeals' decision, which is entirely
consistent with CERCLA's language and "the well-settled principle of
limited shareholder liability" (id. at 7), does not conflict with any
decision of this Court or of another courts of appeals. Accordingly,
there is no warrant for this Court's review.
1. Kayser-Roth argues that the court of appeals erred in holding it
liable for its participation in the operation of the Stamina Mills
facility because "a corporate parent may be held directly liable as
the 'operat(or)' of a facility owned and operated by one of its
subsidiaries only if the corporate veil between the parent and
subsidiary may be pierced." Pet. 8. See also id. at 7, 13, 15.
Petitioner's argument is incorrect under both the plain language of
CERCLA and settled principles of corporate law. Moreover, it ignores
the concurrent findings of the lower courts that Kayser-Roth -- and
not the Stamina Mills subsidiary -- exercised "practical total
influence and control over Stamina Mills' operations." Pet. App.
5a-6a, 13a.
As the court of appeals explained, CERCLA imposes liability on "any
person" -- including a corporation -- that at the time of disposal of
any hazardous substance "owned or operated" any facility at which such
hazardous substances were disposed of. Pet. App. 3a-4a; see CERCLA
Sections 101(21), 107(a)(2), 42 U.S.C. 9601(21), 960(a)(2). The lower
courts determined in this case that Kayse-Roth, which exercised
"practical total control over Stamina Mills' operations" (Pet. App.
22a), was therefore liable as the operator of the Stamina Mills
facility. /4/
Kayser-Roth principally argues that CERCLA does not impose
liability on a parent corporation where -- in the course of "routine
oversight" -- it "supervis(es)" the activities of its subsidiary.
Pet. 9, 10, 11. /5/ That argument fails to comport with the two lower
courts' concurrent factual findings, which this Court normally accepts
as correct. See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656, 665
(1987). Those courts found that Kayser-Roth did not simply
"supervis(e)" or conduct "routine oversight" of its subsidiary.
Rather, "Kayser-Roth essentially was in charge in practically all of
Stamina's operational decisions, including those involving
environmental concerns." Pet. App. 13a. The lower courts determined
that Kayser-Roth "operated" the facility because it participated in
and ultimately made all important "operational decisions." /6/
Kayser-Roth's reliance on the "general rule" that "a corporation
and its stockholders are deemed separate entities" (Pet. 9)
accordingly is beside the point. Kayser-Roth is not being "held
liable for the acts of Stamina Mills and its employees" (ibid.). The
facts showed that Kayser-Roth itself, through its own employees,
effectively operated the facility. Indeed, the court of appeals
stated in the clearest possible terms, "Kayser-Roth is being held
liable for its activities as an operator, not the activities of a
subsidiary." Pet. App. 5a (emphasis in original). /7/
Kayser-Roth's attempt to hide behind its subsidiary's "corporate
veil" (Pet. 10, 11, 15) is unavailing. The "corporate veil" protects
a parent corporation from being "held liable for the acts of its
subsidiaries." 1 Fletcher Cyclopedia of the Law of Private
Corporations Section 43, at 729 (rev. 1990). It does not protect the
parent corporation from its own activities or those of its employees
acting within the scope of their authority. /8/ The court of appeals
did not "create" this concept as "a new principle of shareholder
liability" (Pet. 12, 15). Rather, it applied an established rule of
corporate law in the CERCLA context. "It is a well-established rule
that a corporation will be held liable for the torts and wrongful acts
of its directors, officers, and employees within the scope of their
authority." W. Knepper & D. Bailey, Liability of Corporate Officer and
Directors Section 2.11 (4th ed. 1988). /9/ Kayser-Roth became an
operator of the Stamina Mills facility because its employees, acting
within the scope of their authority, took charge of the operation of
the Stamina Mills facility. See Pet. App. 6a, 21a-22a.
2. Kayser-Roth incorrectly argues that the court of appeals'
decision conflicts with the Fifth Circuit's decision in Joslyn Mfg.
Corp. v. T.L. James & Co., supra. As the court of appeals explained,
there is no conflict. The issue in Joslyn Mfg. Corp. was whether to
"impose direct liability on parent corporations for violations of
their wholly-owned subsidiaries." 893 F.2d at 81. /10/ In this case,
by contrast, "Kayer is being held liable for its activities as an
operator, not the activities of a subsidiary." Pet. App. 5a (emphasis
in original).
Kayser-Roth observes that the United States, participating as
amicus curiae in Joslyn Mfg. Corp., suggested that the Fifth Circuit
consider whether the parent corporation in that case was liable based
on the parent corporation's own activities. Pet. 16-17. The Fifth
Circuit, however, did not address that theory of liability. As we
have explained in our response to the Court's invitation for the views
of the United States in Joslyn Mfg. Corp., the Fifth Circuit
apparently declined to consider the government's theory because the
parties did not squarely present it and because the record developed
in the district court would not support it. See Brief for the United
States as Amicus Curiae in Joslyn Mfg. Corp. v. T.L. James Corp., Nos.
89-1973 & 90-69, at 9-12. The Fifth Circuit's failure to address that
theory obviously does not create a conflict among the courts of
appeals. Id. at 10-11. /11/
3. Kayser-Roth also contends that this Court should grant its
petition "to eliminate the disruptive effects flowing from the
confusion that now plagues both the courts and the business community
with respect to this important question." Pet. 19. The courts,
however, have uniformly held -- without violence to "the traditional
principle of limited liability" (ibid.) -- that a shareholder who
actually participates in the operation of a facility can be held
liable under CERCLA on the basis of that participation. See
Northeastern Pharmaceutical & Chem. Co., 810 F.2d at 743-744; Shore
Realty Corp., 759 F.2d at 1045. That is exactly what the court of
appeals held in this case.
CONCLUSION
The petition for a writ of cetiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
RICHARD B. STEWART
Assistant Attorney General
ANNE S. ALMY
BRADLEY M. CAMPBELL
Attorneys
JANUARY 1991
/1/ It is well settled that responsible parties are strictly liable
under CERCLA. E.g., Monsanto, 858 F.2d at 167; Tanglewood East
Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir.
1988); New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.
1985). In addition, they are jointly and severally liable when the
environmental harm is indivisible. E.g., O'Neil v. Picillo, 883 F.2d
176, 178 (1st Cir. 1989), cert. denied, 110 S. Ct. 1115 (1990);
Monsanto, 858 F.2d at 172; United States v. Chem-Dyne Corp., 572 F.
Supp. 802, 810-811 (S.D. Ohio 1983).
/2/ The district court also concluded that "due to the all
encompassing control which Kayser-Roth had over Stamina Mills" the
separate corporate identities of Kayser-Roth and Stamina Mills should
be disregarded. Pet. App. 25a. As a consequence, Kayser-Roth was
also liable as an "owner" of the facility. Ibid. The court of
appeals did not reach the question whether Kayser-Roth is liable under
that theory (id. at 8a n.11), and Kayser-Roth does not seek review of
that issue in its petition (see Pet. 6 n.5, 15 & n.10).
/3/ See also Pet. App. 20a ("The fact that the subsidiary was a
member of the classes of persons potentially liable under CERCLA and
that the parent had a substantial ownership interest in the subsidiary
is insufficient to establish that the parent was an operator for
CERCLA's purposes.").
/4/ Kayser-Roth makes much of the fact that it did not hold title
to the Stamina Mills facility. Pet. 9. As the court of appeals
explained, however, that fact is of no moment because Kayser-Roth is
not being held directly liable as an owner. Pet. App. 5a.
/5/ See Pet. 9 ("the argument here is that Kayer-Roth, by closely
supervising the actions of its subsidiary, controlled the operations
of the facility") (emphasis in original); id. at 10 (Kayser-Roth was
held liable "because of its assertedly close relationship with its
subsidiary"); ibid. ("any involvement by Kayser-Roth occurred in the
course of routine oversight of the activities of its subsidiary");
id. at 11 ("Congress's failure to include a similar express 'control'
standard in the relevant portion of CERCLA weighs strongly against
expanding the liability of corporate shareholders.").
/6/ Both lower courts recognized that "it is obviously not the
usual case that the parent of the wholly owned subsidiary is an
operator of the subsidiary." Pet. App. 5a; see id. at 20a-21a. They
concluded, however, that this was not the "usual case." The district
court found that "(t)he only autonomy given the officers of Stamina
Mills was that absolutely necessary to operate the facility on-site
from day to day such as hiring and firing hourly employees and
ordering inventory." Id. at 14a. Kayser-Roth contends, based on that
limited autonomy, that only the now-dissolved Stamina Mills (and
presumably its shift supervisors and purchasing agents) should be held
liable for clean-up. Pet. 9. The courts below correctly rejected
that contention. The person or entity actually "in charge" of a
facility cannot escape liability on the ground that subordinates were
allowed to exercise some limited measure of discretion. See, e.g.,
Shore Realty Corp., 759 F.2d at 1052 ("LeoGrand is in charge of the
operation of the facility in question, and as such is an 'operator'
within the meaning of CERCLA.").
/7/ Kayser-Roth's argument that CERCLA normally does not employ a
"control" test (Pet. 11-13) is also beside the point. The lower
courts did not employ a "control" test; rather, they examined whether
"Kayser was an operator." Pet. App. 5a. In any event, Kayser-Roth's
argument rests on an incorrect reading of the relevant CERCLA
provisions. Kayser-Roth observes that CERCLA's definition of an
"owner or operator" includes both "any person owning or operating such
facility" and
in the case of any facility, title or control of which was
conveyed due to bankruptcy, foreclosure, tax delinquency,
abandonment, or similar means to a unit of State or local
government, any person who owned, operated or otherwise
controlled activities at such facility immediately beforehand.
Section 101(20)(A), 42 U.S.C. 9601(20)(A) (emphasis added). That
latter portion of the definition addresses abnormal situations -- such
as bankruptcies or foreclosures -- where the entity responsible for a
facility may not technically hold title to the facility nor actively
make operational decisions at the facility. See, e.g., United States
v. Fleet Factor Corp., 901 F.2d 1550, 1555 (11th Cir. 1990), cert.
denied, No. 90-504 (Jan. 14, 1991). The use of the term "control" in
that context does not suggest, as Kayser-Roth argues by negative
implication (Pet. 12-13), that one who exercises active operational
control at a facility is not an operator.
/8/ Although the court of appeals found no need to reach the issue
(Pet. App. 8a n.11), the district court concluded that there was a
sufficient basis, in any event, for "piercing the corporate veil." Id.
at 23a-25a. See note 2, supra.
/9/ See, e.g., United Mine Workers v. Coronado Coal Co., 259 U.S.
344, 395 (1922) ("A corporation is responsible for the wrongs
committed by its agents in the course of its business, and this
principle is enforced against the contention that torts are ultra
vires of the corporation."); see also, e.g., 10 Fletcher Cyclopedia
on the Law of Private Corporations Section 4877, at 323 (rev. 1986)
("corporations can commit almost any kind of a tort that individuals
can commit, and are liable for the acts of their agents and servants
in the same degree as natural persons are liable for the acts of their
servants and agents * * *; that is now hornbook law, unless changed
by statute"); R.Stevens, Handbook on the Law of Private Corporations
359 (2d ed. 1949) ("In applying the doctrine of respondeat superior to
any master, corporate or noncorporate, the fundamental question is
whether the servant acted within the actual or apparent scope of his
employment.").
/10/ The Fifth Circuit repeatedly framed the question, and its
answer, in those terms. See also 893 F.2d at 82 ("Joslyn urges this
court to read CERCLA's definition of 'owner or operator' liberally and
broadly to reach parent corporations whose subsidiaries are found
liable under the statute."); ibid. ("Joslyn asks this court to
rewrite the language of the Act significantly and hold parents
directly liable for their subsidiaries' activities."); ibid. ("CERCLA
does not define 'owners' or 'operators' as including the parent
company of offending wholly-owned subsidiaries."); id. at 83
("Congress is quite capable of creating statutes that hold
shareholders or controlling entities liable for the acts of valid
corporations."); ibid. ("Similarly, La. Rev. Stat. Ann. Section 30:
2276 (West 1989 Supp.) does not impose direct liability on parent
corporations for the acts of their subsidiaries.").
/11/ Kayser-Roth asserts that "the question here plainly would have
been decided the opposite way had this case arisen in the Fifth
Circuit." Pet. 17. We disagree. The Fifth Circuit did not foreclose
the possibility of holding a parent corporation liable based on the
parent corporation's own acts, nor did it disagree with the district
court's statements that the parent would be liable if it had been
"actively involved" in its subsidiary's operations. See Joslyn Mfg.
Corp. v. T.L. James & Co., 696 F. Supp. 222, 232 n.20 (W.D. La. 1988).
See also Riverside Market Devel. Corp. v. International Bldg.
Products, No. 88-5317 mem. op. (E.D. La. May 23, 1990) (1990 WL 72249,
*3-*4) ("If, as in the cases cited by Judge Stagg, (a shareholder)
personally participated in the disposal of hazardous wastes, then he
may be liable for the wrongful acts of the corporation even under
Judge Stagg's Joslyn opinion.").